Magee v. Pope et al.

Decision Date01 February 1938
Docket NumberNo. 24411.,24411.
Citation112 S.W.2d 891
PartiesCHARLES D. MAGEE, PLAINTIFF, RESPONDENT, v. MRS. IVA POPE AND THE ST. LOUIS UNION TRUST CO., (DEFENDANTS), APPELLANTS.
CourtMissouri Court of Appeals

Appeal from Circuit Court of City of St. Louis. Hon. John W. Joynt, Judge.

AFFIRMED.

S.C. Rogers for appellants.

(1) Danforth v. Foster, 158 Mo. App. 104; Aetna Iron Wks. v. Transit Co., 95 Mo. App. 565; Lester R.E. Co. v. City of St. Louis, 169 Mo. 235; Putnam v. Coates, 220 Mo. App. 218, 222; Brown v. Philips, 300 Mo. 603, 611; Aufderheide v. Polar Wave I. & F. Co., 4 S.W. (2d) 776, 786, 319 Mo. 362; Red Star Yeast v. LaBudde, 83 F.R. (2d) 394; 32 C.J. 327, sec. 540; Davis v. Hartwig, 195 Mo. 395, 399; McKinzie v. Mathews, 59 Mo. 99. (2) State ex rel. v. Barton, 104 S.W. (2d) 284, 288; State ex rel. v. Bruce, 70 S.W. (2d) 854, 856. The facts must be pleaded. Barlow et al. v. Scott et al., 85 S.W. (2d) 504; Palmer v. Marshall, 24 S.W. (2d) 229; Fielder v. Fielder, 6 S.W. (2d) 968. The want of the allegation of these facts is jurisdictional. Bragg v. Specialty Shoe Mchy. Co., 34 S.W. (2d) 184. (3 and 4) Bain v. Munro, 5 Rettie 416 (Scot. Ses. Cases, 4 Ed.). (5) Parks v. Marshall, 14 S.W. (2d) 590; Lolardo v. Lacy, 88 S.W. (2d) 353; Dalphine v. Lume, 145 Mo. App. 549; Ebel v. Roller, 21 S.W. (2d) 216, 217; McNatt v. Maxwell Inv. Co., 50 S.W. (2d) 1044; Stephens v. Bell, 106 S.W. (2d) 19; Pulitzer v. Chapman, 85 S.W. (2d) 400; Parks v. Marshall, 14 S.W. (2d) 590; Lolardo v. Lacy, 88 S.W. (2d) 353. Offer of proof was not necessary because the question clearly indicated the pertinency and materiality of its answer. Emerson-Brantingham I. Co. v. Simpson, 205 Mo. App. 56, 217 S.W. 559. (6) In finding against St. Louis Union Trust Company for injunctive relief and on the merits, for the reasons set out in Aetna Iron Wks. v. Transit Co., 95 Mo. App. 565; Bragg v. Splty. Mchy. Co., 34 S.W. (2d) 184; Bain v. Munro, 5 Rettie 416; Lolardo v. Lacy, 88 S.W. (2d) 353, and other citations under 1, 2, 4 and 5, supra and 7, infra. (7) In finding for plaintiff against Mrs. Pope for injunctive relief and on the merits. Equity will not aid respondent under the circumstances in this case. Frederich v. Union Elec. L. & P. Co., 82 S.W. (2d) 85; Buckingham v. Walters, 14 Cal. 147, 148; Smith v. Citizens Bk., 106 S.W. (2d) 50. Mrs. Pope went to expense, trouble, inconvenience and surrendered an opportunity to sell to another; that is sufficient consideration. Mad. Co. Bk. v. Graham, 74 Mo. App. 251; Third Natl. Bk. v. Reichert, 101 Mo. App. 242, 253; Koch v. Lay, Garn., 38 Mo. 147; Scot. Rite Temple Assn. v. Luckinger, 101 S.W. (2d) 511; Hardin College v. Johnson, 3 S.W. (2d) 264. If others were willing to buy but Mrs. Pope sold to respondent, that deprived her of a sale to others. Cornell Law Quarterly 12, 316, 1926. Securing an acceptable tenant is sufficient consideration for a note. Underwood Tywr. Co. v. Cent. Rlty. Co., 118 Mo. App. 197, 202 (S.C., 220 Mo. 522). So is the promise to sell stock. Loud v. St. L. Union Tr. Co., 313 Mo. 552, l.c. 603-4. Also for breach of covenant of warranty. Jones v. Hazeltine, 124 Mo. App. 686. So is a promise to plant and cultivate potatoes. Edwards v. Offutt, 229 Mo. App. 496, 78 S.W. (2d) 140. It is not necessary that the consideration be of value to respondent. Fitzgerald v. Fleming, 58 Mo. App. 185, 188. He cannot keep "the sweets" and repudiate "the bitter." Wood v. Telephone Co., 223 Mo. 563; Priest v. Oehler, 41 S.W. (2d) 788; Rogers v. Merct. Adj. P.A., 118 Mo. App. 1; Stephens v. Bell, 106 S.W. (2d) 19; 8 C.J. 726, sec. 1008. The note itself imports consideration. Cahn v. Miller, 106 S.W. (2d) 496. Respondent knew what he was buying and cannot now complain. McCaw v. O'Malley, 298 Mo. 414; Tanner v. West, 99 S.W. (2d) 16; Orlann v. Laederich, 92 S.W. (2d) 190. For better or for worse, respondent got what he bargained for. Smock v. Pierson's Exr., 68 Ind. 405; Buckingham v. Walters, 14 Cal. 147; 28 C.J. 744, sec. 22. Consideration can only be overcome by clear cogent and convincing evidence. Barlow v. Scott, 85 S.W. (2d) 504. The allegation of want of consideration is insufficient in plaintiff's petition but is possibly good as an answer to Mrs. Pope's counterclaim. The presumption of consideration is not overcome when it is shown there was some consideration, no matter how fraudulent or trifling. Williams v. Mellon, 56 Mo. 262; Mills Org., Inc., v. Bell, 225 Mo. App. 688, 37 S.W. (2d) 680, 682; Kessler v. Clayes Adm., 147 Mo. App. 88; 8 C.J. 916, sec. 1204; Harshbarger v. Eby, 28 Idaho, 753, 156 P. 619. The failure of the petition to state a cause of action is jurisdictional and can be raised in any court and at any stage of the case. Chandler v. R.R., 251 Mo. 599; State ex rel. v. Bruce, 70 S.W. (2d) 854; Feldman v. Levinson, 93 S.W. (2d) 31; Bragg v. Specialty Shoe Mchy. Co., 34 S.W. (2d) 184; Denny v. Guyton, 40 S.W. (2d) 567; Bain v. Munro, 5 Rettie, 416 (Scot. Ces. Cases, 4 Ed.). If the parties fixed the value, the court should not disturb it. Cornell Law Quarterly 12, 315, 1926. The business going to respondent as a result of this sale was not an accident. Good will is "that which makes tomorow's business more than an accident." Neither appellant could assign the note to an innocent holder for value because two installments of interest were past due at the time. George v. Surkamp, 76 S.W. (2d) 373; Chouteau v. Allen, 70 Mo. 339; Yeomans v. Nachman, 198 Mo. App. 207-8; Merct. Natl. Bank v. Brisch, 154 Mo. App. 639; Progress Fin. & R. Co. v. Stempel, 95 S.W. (2d) 834. Neither fraud, misrepresentation, misstatement, imposition, duress, nor mutual mistake, is alleged but respondent seeks to repudiate, but not rescind, a deliberate and voluntary act. Johnson v. Friedhoff, 27 N.Y. Sup. 982. (8) In finding for plaintiff and against Mrs. Pope on her cross-bill or counterclaim. Mrs. Pope is entitled to judgment on her counterclaim for $4750 with 8 per cent interest from the time of filing her counterclaim. Linneman v. Hawkins, 27 S.W. (2d) 1046-7. (9) For the foregoing reasons, the court erred in overruling both motions for new trial and both motions in arrest of judgment.

Arthur Kreisman and W.E. Powell for respondent.

(1) The good will of a physician is dependent solely on his personal ability, skill, integrity and personal characteristics, and upon his death his good will dies with him. Ryman v. Kennedy, 141 Ga. 75, 80 S.E. 551; Rakestraw v. Lainer, 104 Ga. 188, 30 S.E. 735, 65 Am. S.R. 134; Kremelberg v. Thompson, 87 N.J. Eq. 655, 103 A. 523; Mandeville v. Harman, 42 N.J. Eq. 185, 7 A. 37; Matter of Caldwell, 107 Misc. 316, 320, 176 N.Y.S. 425 (Aff. 188 N.Y.S. 921 Mem.); McFarland v. Stewart (Pa.), 2 Watts 111, 26 Am. D. 109; 28 C.J., page 731, sec. 3; 28 C.J., page 734; Metropolitan Bank v. St. Louis Dispatch Co., 149 U.S. 438; Mullin v. Mullin, 85 N.J. Eq. 531, 96 R. 996; Wightman v. Wightman, 223 Mass. 398, 111 N.E. 881. (2) Even assuming that the alleged cooperation of Mrs. Pope could be considered as having some value, an agreement to pay five thousand dollars for the same is unconscionable. Wenninger v. Mitchell, 139 Mo. App. 420; Ball v. Reyburn, 136 Mo. App. 546, 118 S.W. 524, 72 A.L.R. 115. (3) Equity has jurisdiction to enjoin the transfer and to order cancellation of a negotiable instrument on grounds which as between the maker and payee will prevent the payee from enforcing it. 32 C.J. 42, 152, 153. (4) Where the statement of the consideration in a written instrument is a mere recital, it is open to explanation by parol evidence. Tate v. Railroad, 131 Mo. App. 107, 110 S.W. 622; McDaniel v. United Railways, 165 Mo. App. 678, 691, 148 S.W. 464, 466; 6 Am. & Eng. Ency. Law (2 Ed.), 767; Jackson v. Chicago, St. P., etc., R. Co., 54 Mo. App. 636; Laudman v. Ingram, 49 Mo. 212; Craig et al. v. Koss Const. Co., 69 S.W. (2d) 964; Kriling v. Cramer, 152 Mo. App. 431, 438, 133 S.W. 655, 656. (5) Plaintiff had no adequate and complete remedy at law. Barrinton v. Ryan, 88 Mo. App. 85; Begley v. Mississippi Valley Trust Co., 252 S.W. 84. (6) Harmless error not materially affecting the merits is not a ground for reversal, when the judgment and decree is for the right party. Short v. Taylor (Mo.), 38 S.W. 952, 137 Mo. 517; Kuhn v. Germania Life Ins. Co., 71 Mo. App. 305; Blesse v. Blackburn, 31 Mo. App. 264; Secs. 821, 1062, 1099, R.S. Mo. 1929.

HOSTETTER, P.J.

This is a suit in equity which was begun in the Circuit Court of the City of St. Louis on May 8, 1935, in which plaintiff sought to cancel a certain promissory note dated November 9, 1934, for $5000, payable in monthly installments of $83.331/3 each to the defendant, Mrs. Iva Pope, and to recover $249.99 paid thereon, on the ground that the said note was without any consideration.

The facts concerning the making and delivery of the note are substantially as follows: Dr. Charles H. Pope was a practicing physician in the city of St. Louis and maintained offices in Rooms 1889 and 1890, Railway Exchange Building, where he had an office practice which included making examinations for insurance companies. From time to time Dr. Pope had associates who looked after some of the insurance examinations and took care of patients when he did not care to serve, such as maternity, heart, ear, nose and throat cases, and on one occasion to look after his office practice while he was away on a vacation. Before such associations were permitted to make insurance examinations Dr. Pope asked the insurance companies permission to have such associates make examinations and to that end had such associates to complete regular application blanks furnished by the respective insurance companies, giving the qualification and experience of such associate, after which the insurance companies ran an inspection report for the purpose of...

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